SZBCF v Minister for Immigration - [2004] FMCA 1006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBCF v MINISTER FOR IMMIGRATION

[2004] FMCA 1006

MIGRATION – Review of RRT decision – where applicant claims to have a well-founded fear of persecution for the Convention reason of religion – where Tribunal wrote to applicant inviting him to comment on certain aspects of his application and requesting that he provide evidence to substantiate his claims – where applicant was invited to, and attended, a hearing before the Tribunal – where inconsistencies in the applicant’s claims impacted on the applicant’s credibility – whether the findings and reasons of the Tribunal decision evidences jurisdictional error or a denial of procedural fairness.

Migration Act 1958 (Cth), s.424A
Federal Magistrates Court Rules 2001

NARE v MIMIA [2003] FCA 554
Ex parte Durairajasingham (2000) 168 ALR 407

Applicant:

SZBCF

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 1510 of 2003

Delivered on:

9 December 2004

Delivered at:

Sydney

Hearing date:

9 December 2004

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

Applicant in Person

Counsel for the Respondent:

Mr D Jordan

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $4,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1510 of 2003

SZBCF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of India. He arrived in Australia on 6 June 2002. On 28 June 2002 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 23 August 2002 a delegate of the Minister refused to grant a protection visa and on 16 September 2002 the applicant applied for a review of that decision.
The Tribunal having advised the applicant that it was unable on the evidence before it to grant him a visa offered him the opportunity to attend at a hearing on 27 June 2003, which he accepted. Before that hearing a letter was written to the applicant under s.424 of the Migration Act advising the applicant that the Tribunal required his comments upon certain matters which could be relevant in making its decision. It is interesting to note the letter that was written to the applicant does not refer to the fact that the evidence may be relevant; it is just a request for the provision of further information and it ends with the following:
“If you do not provide the additional information by 29 May 2003 the Tribunal may make a decision in the review of your case without further notice.”
This is a surprising statement to have made in view of the fact that the applicant had not at that time been invited to a hearing, the hearing invitation only coming on 3 June 2003. It would seem that the Tribunal was relying on s.424C of the Act and in particular s.424C(b). The threat contained was not carried out and one would have to wonder whether the doctrine of procedural fairness would sanction him not having an opportunity to appear before the Tribunal had he not done so.
The applicant's claims to have a well-founded fear of persecution for the Convention reason of religion arise out of the fact that he is Muslim originally from the State of Tamil Nadu who claimed to have resided in the State of Gujarat from 1977 until February 2002. There he operated a restaurant. He told the Tribunal that his restaurant had been burned down by a group of Hindu rioters under the leadership of the local BJP (Bharatiya Janata Party). He claims that it was a large incident in which some 70 Muslim persons were killed and took place on or about 28 February 2002.
After the incident the applicant left Gujarat and he returned to Tamil Nadu where in April of 2002 his home was visited by police accusing him of involvement in the Ghodra train incident where a large number of Hindus were killed whilst on the train that was set alight by Muslims on 27 February 2002.
The applicant told the Tribunal that after this occurrence (the visit of the police) he determined to leave India utilising a passport which had been issued on 4 January 2002. He obtained a visitor's visa to Australia on 20 May and left upon 6 June. The applicant fears that if he returns to India he will be found by the police and arrested in connection with the Ghodra incident in respect of which he had no part.
The s.424 letter requested information from the applicant which would provide documentary corroboration of his claim to have owned and managed a restaurant in Gujarat for 25 years as well as his comments upon information held by the Tribunal concerning checks made at the airport for people who may have committed criminal offences.

The letter also asked for the applicant's comments concerning the ability of the Indian State to protect its citizens and that there was no impediment to a person such as the applicant from relocating within India.
Finally, the letter asked why, if the applicant had been falsely accused of involvement in the Ghodra train incident in February 2002, he delayed his departure from India until 5 June 2002 notwithstanding that he obtained a passport in January and a visa to enter Australia on

20 May.
The Tribunal provided its findings and reasons for its decision to uphold the decision of the delegate between [CB 72] and [CB 75]. It summarised these at [CB 72]:
“I do not accept that the applicant has a genuine or well‑founded fear of persecution by reason of his religion or his political opinion, or for any other Convention reason. I am satisfied for the reasons I give below that the applicant has fabricated his claims in order to extend his stay in Australia. Those reasons are, in summary, because his claims are contrary to the available independent information, he has failed to provide adequate support, documentary or otherwise, for his claims. His claims are vague, lack detail and are inconsistent and his behaviour is inconsistent with a genuine fear of persecution.”
The Tribunal goes on to amplify these reasons under separate headings and in particular at [CB 74] points out certain inconsistencies which tend to weaken the credibility of the applicant's case. Firstly, the applicant gave no detail of the date upon which the false case made by the BJP was lodged nor of the specific offences, he did not resolve to the Tribunal's satisfaction the statement in his protection visa application that he had left India legally with his evidence at the hearing that he was obliged to pay bribes and use contacts to sneak in at the airport. All the evidence that he was on the wanted list conflicted with a statement in his protection visa application that he had never been the subject of criminal investigation or charge.
The Tribunal also took the view that certain aspects of his behaviour was inconsistent with a genuine fear of persecution. Much of this centred around the time the applicant took to leave the country. Another Tribunal may have felt that the delay between 20 May 2002 when his visa was granted and the flight on 6 June 2002 did not indicate a delay that called his evidence into question. But it would not fall within the formulation of Wednesbury unreasonableness to say that it did and the Tribunal cannot be accused of falling into jurisdictional error by making this finding.
The applicant moved the court on an amended application which was filed on 1 June 2004. The grounds of the application commence with a complaint that he was not served with the court book. I note that the applicant has a copy of the court book here today and Mr Jordan assures me that it has not just been given to him. This would not be a ground of jurisdictional error in respect of the Tribunal's actions but it might have been an excuse to delay this hearing. The other matters raised in the application complain that the Tribunal did not accept the evidence of the applicant. But those are matters which go to a merits review of the applicant's claims. It would therefore be well if I set out for the applicant the views of Allsop J in NARE v MIMIA [2003] FCA 554 at [10] as to the role of the courts on review:
“What the applicant may not well appreciate, not being a lawyer, is that the process and purpose of review to this court does not and cannot involve simple re-finding of facts found by the Tribunal. Rather, the review is, broadly speaking, to ensure that the Tribunal has made the decision lawfully ...It is not the Court's job to review the factual findings of the Tribunal unless their quality or lack thereof is such as to betray a failure to undertake properly the required task.”
I am quite satisfied from reading the decision of the Tribunal that it undertook its tasks in accordance with the provisions of the Act.

It provided the applicant with procedural fairness in relation to matters it considered to be of concern by sending him the s.424 letter. It raised those matters with him again at the hearing. It came to its decision based upon its view of the applicant's credibility and that, as has been said so many times in cases of this nature, is a matter for the Tribunal "par excellence": Ex parte Durairajasingham (2000) 168 ALR 407.
In the circumstances I am unable to find any grounds upon which I can say that this Tribunal fell into jurisdictional error in the manner in which it came to its decision. The application is dismissed. The applicant must pay the respondent's costs which are assessed in the sum of $4,000 pursuant to Part 21 Rule 21.02 (2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 20 December 2004